World Conference Against Racism: new avenues for slavery reparations?

AuthorLyons, Michelle E.

ABSTRACT

The reparations movement has had a long and tumultuous history, as past attempts to obtain equitable relief have failed through common law, international law, legislation, and constitutional law. However, recent developments in these areas have pushed the reparations movement to the forefront. For example, Farmer-Paellmann v. Fleetboston Financial Corp. and similar suits have renewed the common law claim for reparations by identifying corporations that have kept record of their involvement in slavery and naming the corporations as concrete defendants. By naming corporate defendants, as compared to governmental or individual defendants, the suits have eliminated an enormous weakness in past efforts, namely the lack of an identifiable and culpable defendant. The World Conference Against Racism and passage of the International Criminal Court have propelled reparations debate among many countries and have demonstrated the growing intolerance for ongoing slavery, adding force to the reparations movement on the international law front. Legislatively, Representative John Conyers continues to endorse H.R. 40, and both the state of California and the city of Chicago, Illinois have passed legislation forcing firms to report their past involvement in slavery, undoubtedly aiding the common-law class-action claims. These developments evidence that the reparations movement is becoming more widespread. Although past claims may have failed for lack of coordination, the current litigation, pending legislation, and international developments show that the world is increasingly united in its demand for a reparations resolution.

  1. INTRODUCTION

    The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR or Conference) took place in Durban, South Africa from August 30, 2001 to September 7, 2001 pursuant to U.N. General Assembly resolution 52/111. (1) Prior to the actual discussion, the WCAR boasted five "themes," or issues, to serve as the basis for the Conference. (2) First, the WCAR wished to address the sources, causes, forms, and contemporary manifestations of racism, racial discrimination, and related intolerance. (3) Second, the WCAR aimed to discuss the treatment of victims of racism, racial discrimination, and related intolerance. (4) Third, the Conference wished to consider and implement measures of prevention, education, and protection, thereby eradicating racism, racial discrimination, and related intolerance at the national, regional, and international levels. (5) Fourth, in response to the discussion and acknowledgment of the sources, victims, and prevention of racial discrimination, the Conference aimed to create a provision for effective remedies, recourses, redress, and other measures at the national, regional, and international levels. (6) Finally, the WCAR wished to explore strategies to achieve full and effective equality, including international cooperation and enhancement of the United Nations and other international mechanisms in combating racism, racial discrimination, and xenophobia. (7)

    The WCAR, which included representatives from 166 nations, (8) adopted a non-binding "Declaration and Programme of Action that commits Member States to undertake a wide range of measures to combat racism and discrimination at the international, regional and national levels." (9) Slavery was one of the key issues addressed through the Conference. (10) The WCAR acknowledged that slavery and the slave trade constituted a crime against humanity, and urged "concerned States" to participate in compensation for its victims. (11) Of the 166 nations in attendance, only 163 adopted the Declaration. (12) The United States and Israel were among the dissenting nations. (13)

    The debate regarding reparations for slavery started, however, long before the opening of the Conference in Durban. (14) Prior to the WCAR, U.S. Secretary of State Colin Powell intended to represent the United States at the Conference as the first black U.S. Secretary of State. (15) However, two pivotal issues emerged prior to the Conference: a proposal that the United States and other nations that participated in the slave trade pay reparations for slavery, and language singling-out Israel for "practices of racial discrimination against the Palestinians." (16) Before the Conference commenced, the United States sent diplomats to a final preparatory session in Geneva in an effort to eliminate references to demands for reparations and references offensive to Israel. (17) In lieu of an apology for slavery or reparations for the descendants of slaves, the United States proposed an expression of regret combined with a pledge to aid African countries. (18) Furthermore, the U.S. administration announced that unless the agenda was adjusted to its liking by the opening of the conference, the United States would be unable to attend. (19)

    By the conclusion of the Geneva session, the United States felt that a compromise had been reached on the issue of slavery reparations, but continued to reject the contentious language regarding Israel. (20) As a result of the brewing controversy, Secretary Powell stayed in Washington and sent a mid-level delegation to the WCAR. (21)

    With four days remaining in the Conference, U.S. representatives had not successfully negotiated the removal of "hateful language" regarding Israel contained in a draft document, and Secretary Powell decided to remove the U.S. delegation from the Conference. (22) Israel followed suit, removing its delegation and calling the Durban conference a "farce." (23) Although the United States cited the controversy surrounding the anti-Israel language as its motivating factor for walking out of the Conference, other nations accused the United States of pulling out because of its own refusal to "accept responsibility for slavery and for injustices to Native Americans." (24) Following the walk-out, U.S. National Security Advisor Condoleezza Rice stated that, rather than focus on reparations, other nations in the Conference should "look forward and not point fingers backward." (25) Two days later, the European Union was also close to abandoning the Conference, fearing a decreased possibility of a meaningful outcome, because of its objections to the Arab nations' continued negative focus on Israel. (26) A published quotation from one non-governmental observer stated, "without the EU and the U.S. there won't be any major rich countries left for the rest of the world to shout at." (27)

    While the Conference's final Declaration declared slavery a "crime against humanity," conflicting demands existed regarding reparations for the descendants of slaves. (28) Zimbabwe led some African countries and African Americans in asking for an apology, as well as cash compensation to be paid to individuals by the Western countries that practiced the slave trade. (29) South Africa and other African countries, however, supported reparations in the form of development funding from the former slave-trading countries. (30)

    After a week of debate the delegates reached a resolution, labeling the slave trade a "crime against humanity," and determining that states that benefited from the slave trade should help rebuild countries "and the diaspora" caused by slavery. (31) However, the WCAR final documents were not released until January 3, 2002 because of the controversy surrounding the African countries' demand that several paragraphs referring to slavery be placed in the main part of the text, as opposed to the declaration. (32) Western countries were fearful that the placement of wording in the text that "slavery and the slave trade are a crime against humanity and should always have been so" would change the context of the document. (33) Ultimately, the final document stopped short of calling for reparations and an explicit apology from nations that benefited from the slave trade and colonialism. (34) Instead, it simply encouraged nations benefiting from the slave trade to provide aid. (35)

    This Note discusses the legal implications surrounding the final documents produced at the WCAR, and the possibility of their use as a springboard for jurisdiction in both domestic and international judicial fora. In particular, this Note explores the recent moves toward forming a legally-grounded claim for slavery reparations, as opposed to the recent focus on public policy and moralistic compensation for past injustices.

  2. SOURCES AND JUSTIFICATIONS FOR SLAVERY REPARATIONS

    To understand the implications of the-WCAR declaration of slavery as a crime against humanity, two important background issues emerge: reparations that have been paid in the past for injustices and hardships, and the arguments for the payment of reparations for the injustices associated with slavery. Claims in which individuals have received reparations have involved identifiable victims and perpetrators, the damages were apparent and clear, direct causation existed, and the award signaled finality to the claim or issue. (36) From the apparent "formula for success" established by past cases, the current arguments for slavery reparations can be evaluated in light of the recent WCAR developments.

    1. Setting the Stage: Reparations Paid

      While the struggle for individuals to gain reparations redress has been difficult at times, demands for reparations are certainly not a novel issue. (37) David Swinton, a Harvard-trained economist and president of historically-black Benedict College in Columbia, South Carolina, remarked, "I don't think (black) people really understand reparations.... They think it's somehow radical and un-American." (38) However, the claims by victims of foreign atrocities, by Japanese Americans, and by the victims of the Rosewood Massacre represent major claims that have resulted in successful awards.

      1. Foreign Reparations

      The purpose of reparations is to repair a people for significant harm done to them...

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